On recall legislation

21/06/201016/12/2011

While a feature of the democratic process in some US states, recall legislation is practically unheard of in Commonwealth countries. In fact, the Canadian province of British Columbia is the only Commonwealth jurisdiction to have recall legislation.

The Recall and Initiative Act came into force in 1995, providing a mechanism to recall sitting Members and to bring citizen initiatives before the Legislature or to province-wide referendum.

In order to recall a Member of the BC Legislative Assembly (MLA), a registered voter in that MLA’s electoral district must apply for the issuance of a petition to recall the MLA. The petition must contain specific information: the name of the member being recalled; the name and address of the applicant; a brief statement (200 words maximum) explaining why the member should be recalled; a solemn declaration of the applicant that he or she is not disqualified from making the application; and any other information deemed necessary. No application for the issuance of a recall petition can be made during the 18 months following the last election.

If all the above requirements are met, the Chief Electoral Officer must then:

notify the MLA in question that a petition is to be issued, and the Speaker of the Legislature that the application has been approved in principle; and

issue the petition within 7 days after notice is given.

A recall petition must be signed within 60 days from the date it is issued and must be signed by more than 40% of the total number of individuals who are entitled to sign the recall petition (be a registered voter for that electoral district for the last election and on the date he or she signs the petition, must be a registered voter for an electoral district in BC.

Once submitted to the Chief Electoral Officer, he or she has 42 days to review the petition and determine if it meets all requirements. If it does, the MLA targetted by the recall petition ceases to hold office and his or her seat becomes vacant.

There have been 20 recall applications since 1995. Of the 20 petitions issued, four were returned to Elections BC, two proceeded to verification, and one continued through the full verification process. Nineteen of the 20 petitions failed as they did not collect enough valid signatures. The other petition was halted during the verification process because the MLA in question, Paul Reitsma, resigned.

We will bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP is found to have engaged in serious wrongdoing and having had a petition calling for a by-election signed by 10% of his or her constituents.

The actual legislation has not yet been introduced, leaving us with only this proposal to consider, but already there are two important differences. First, the proposal for recall in the UK would be limited to instances where an MP is found to have engaged in “serious wrongdoing”. The BC act sets out no criteria for when an MLA could be recalled; it is entirely left to the voters to decide. Secondly, the UK proposal would require only 10% of the MPs constituents to sign a recall petition, much less than the 40% required in BC.

These two points illustrate some of the key concerns opponents of recall legislation typically raise. If no specific criteria for recall is set forth, then recall petitions could be launched for very frivolous reasons – simply because someone in the MP’s or MLA’s riding doesn’t like them, for example. And while such a petition would likely fail to gather the required number of signatures, the process would still be initiated, the application would still have to be reviewed, taking up time and resources. At least the recall option being proposed in the UK specifies that it will be targeted at MPs engaging in “serious wrongdoing”. However, if that is the case, is recall legislation really needed? Generally, if an elected official is discovered to be engaged in questionable activities – criminal or otherwise – there are already measures in place to deal with such situations, including the laying of criminal charges.

Even if most, or even all, recall petitions in BC are launched for more legitimate reasons, these can still be problematic. For example, there is great opposition in BC at the moment over the introduction of a new Harmonized Sales Tax (HST). Along with recall legislation, BC also has referendum initiative legislation, which allows any registered voter to apply to have a petition issued to gather support for a legislative proposal. The criteria for the referendum petitions is similar to that for recall petitions, except the proponent then has 90 days to collect signatures of 10% of the registered voters in each electoral district in the province. An initiative to end the harmonized sales tax issued in April has succeeded in gathering the required number of signatures within the 90-day time frame. Concurrent with that effort, eight MLAs are facing potential recall petitions due to their support for the HST legislation. One of the targeted MLAs has already resigned.

The HST recall threat illustrates an important reality in Canadian politics – the tradition of strict party discipline. Most policy decisions are made by Cabinet or the party caucus. Is it fair for electors to blame a specific policy on their MP? While recall may have a role to play in allowing voters to rid themselves an incompetent or corrupt representative, there are other scenarios that aren’t as clear-cut. What about a decision made by the national government that is particularly unpopular in one region of the country, or has negative impact on one specific part of the country. It is very likely that the MPs who represent that part of the country will fight very hard in caucus to prevent the adoption of this policy, but in the end, the policy will be adopted. Should they be recalled simply for being outvoted by their party? What if they fail in their attempts to prevent a local industry from closing? There is a big difference between an MP caught in difficult decisions and one who incompetent or dishonest.

By requiring that a recall petition garner the support of 40% of registered voters in an electoral district, the BC act doesn’t make it very easy for a recall petition to succeed. As stated above, 19 of the 20 recall petitions to date failed as they did not collect enough valid signatures. A much lower threshold, such as the 10% of voters in the UK proposal, could open the door to many frivolous petitions if no regulations surrounding the extent of a recallable offense are provided. By limiting recall to instances of “serious wrongdoing”, however, the 10% threshold may not prove to be problematic. The question that arises then is, what will constitute “serious wrongdoing”?

While the necessity or desirability of recall legislation remains debatable, if a jurisdiction is going to adopt the power of recall, perhaps the best scenario would be to require a significant threshold, as British Columbia has done – or maybe even a bit higher, say 50%, and combine that with very clear, specific regulations surrounding the extent of what would constitute a recallable offense. This would ensure that voters would have the option to rid themselves of an elected representative who is corrupt or who has violated certain other standards as defined by the legislation, while insuring that the process is not abused or used in a frivolous way.

It will be interesting to see the actual legislation that gets tabled in the UK, and how the debate on the issue proceeds.

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But do you sack ministers for doing the sort of thing lots of voters do – or tolerate – in their own private lives, financial or sexual misconduct as well as other misdemeanours? It’s not as if we look up to them – quite the opposite these days – yet voters expect them to behave much better than they do, don’t we?